Monthly Archives: May 2012

As we remember our nation’s fallen members of the Armed Forces, we cannot overlook the significant contributions of the foreign-born to our military efforts. Especially in the post-9/11 world, foreign-born troops and support staff have played a vital role in the military’s ability to meet its recruitment goals and maintain preparedness.

The most recent data readily available appear to be from 2009, when approximately 12 percent of the U.S. military were non-citizens among a total of nearly 115,000 foreign-born troops. The foreign-born population includes many naturalized U.S. citizens, and recent legislative changes have accelerated the rate at which those who serve in the U.S. military can qualify for naturalization. Among that 12 percent of non-citizens are lawful permanent residents (Green Card holders) as well as undocumented immigrants.

It is frequently observed that foreign-born individuals have been a key part of the U.S. military since the country’s earliest days, and they continue to play that role today in the open-ended Global War on Terror. Due to this designation that the U.S. is at war, all individuals who serve honorably in the U.S. military are eligible for naturalization (citizenship) under Section 329 of the Immigration and Nationality Act. USCIS reports that it is approving record numbers of military applicants for naturalization.

The policy landscape around these issues remains contentious. Some insist that legislation like the DREAM Act is vital both to treat fairly those undocumented youth who never had a choice in their relocation to the United States, while others counterpoint that current law permits even undocumented members of the military to gain citizenship. (A recent story concerns a young man who may have evaded U.S. military policy and enlisted despite being undocumented, and he then naturalized under Section 329. The Department of Defense is normally required to accept enlistment only from U.S. citizens, nationals, or Permanent Residents unless the Secretary of Defense determines that enlistment of an undocumented person is “vital to the national interest.”)

Other observers believe that foreign-born soldiers should be treated differently on matters beyond naturalization. A small community of individuals who were formerly Permanent Residents before being deported for offenses such as drug possession believe that their military service ought to give them greater protection under the immigration laws. Although current laws allow those who serve honorably to naturalize, those who leave military service and then make mistakes that render them deportable are no better situated than non-veterans.

All told, the place of immigrants in our military is in many ways as complicated as is the role of foreign workers in other sectors of our economy — in many cases the foreign-born take on difficult or dangerous jobs where the native workforce cannot supply all needed labor. How we choose to balance the competing needs of military preparedness and rigid immigration laws is a policy challenge that involves not only competing values but also consideration of the individual stories of those who have risked everything for their adopted country.

Our petition has reached its 100th signature, meaning that in all more than 150 people have taken action to urge USCIS to expand and approve its proposed rule for changing the process for adjudicating unlawful presence waivers. There is still time for you and your friends to take action as well before the June 1 deadline.

A fact that is little-known outside of immigration advocacy circles is that the current administration has overseen more deportations in less than four years than the previous president’s administration did in eight. There is a number of reasons for this difference, including improved technology for detecting and apprehending border crossers as well as the expansion of programs such as Secure Communities which were started under the previous president and continued/expanded by this president. Total deportations under this administration have already topped one million, even as attempts to enter without inspection (cross the border illegally) have fallen in the wake of the economic downturn.

Another spike has been the number of deportation processes initiated in the federal immigration courts. The Transactional Records Access Clearinghouse (TRAC) at Syracuse University collates data on the nation’s deportation processes. As of the end of March 2012, there are more than 305,000 pending immigration court cases in the United States, and the average number of days to complete a case is 685. Yes, it takes nearly two years to complete each case, meaning that families face both uncertainty and continued legal fees for months upon months while they process and fight out their cases in immigration court. In these data, 61 percent of all current removal proceedings (the official term) are for allegations of unlawful entry to the United States; less than 17 percent of these cases targeted respondents accused of serious offenses such as crimes or national security concerns. And because the number of immigration judges has not grown as rapidly as enforcement has increased, courts from coast to coast are becoming clogged up with respondents.

A savvy Obama apologist might argue that the president has intentionally hiked up the number of deportations and permitted the clogging of the immigration court system in order to demonstrate the need for comprehensive solutions to our broken immigration system. It is not obvious that the president or his staff would agree with this characterization, but intentionally or not these policies have shown in no uncertain terms that the “round ’em up and deport ’em” approach to recalibrating our immigration system is short-sighted or even foolish.

A recent report out by the American Immigration Council Immigration Policy Center argues that this approach is not only a waste of resources, it also denies those subject to these proceedings sufficient due-process protections. Current Department of Homeland Security practice is such that frequently a handful of different government attorneys (representing Immigration and Customs Enforcement and seeking to remove the respondents) will manage the same case in a rotation depending on whose turn it is. This is done instead of locking ICE attorneys to individual cases, and the predictable results are delays in processing cases and inconsistency from hearing-to-hearing in each ICE attorney’s willingness to cooperate or show discretion toward the same respondent.

As the Immigration Policy Center points out, respondents in removal proceedings are allowed to have an attorney to represent them but they are not entitled to one. As a result, nearly half of all respondents in removal proceedings last year appeared without representation. Immigration attorneys frequently charge thousands of dollars to take on a removal case, and some families simply do not have the money to hire these services however skilled they may be. The alternative is to work with legal services organizations that provide low-cost or no-charge representation, but these organizations have been overwhelmed by the increase in volume. The respondents who fall through the cracks are therefore some of those in greatest need of help, and there is no equivalent to a public defender’s office for immigration cases.

In this context, the Immigration Policy Center points to the concept of prosecutorial discretion as a possible release valve for these pressures that so far has not been utilized. The idea of prosecutorial discretion has gained appeal as a result of a series of memos from high-ranking DHS officials including DHS Secretary Janet Napolitano. The idea is that, faced with record levels of enforcement and deportation, the immigration-court system (and the enforcement agencies that fuel it) should exercise discretion in bringing removal proceedings against individuals who have compelling cases. Individuals with mostly clean criminal records, strong community ties to the United States, who have close U.S. citizen family members who live in the country, and who have been in the country for many years should be given special consideration. This might mean administrative closure of their cases (both sides agreeing to an indefinite “time-out” in removal proceedings) or even avoiding the issuance of a Notice to Appear (NTA) in immigration court in the first place.

Immigration advocates cheered these proposals when they were first brought up, but the reality of prosecutorial discretion has been more complicated. The policy — spelled out clearly and generously in federal memos and pseudo-policy — has been enforced at the whims of local ICE offices according to the attitudes and preferences of district ICE attorneys and individual officers. Additionally, the Immigration Policy Center report points out that there is no systematic way to inform unrepresented respondents that they may request prosecutorial discretion, so many of the unrepresented are completely passed over for this form of relief while those with attorneys or representatives fight tooth and nail (often in vain) for a second look.

The Immigration Policy Center report is worth a read, and it makes a compelling case for the importance of better availability of resources for unrepresented respondents in removal proceedings. As enforcement continues to expand and more and more families are swept up into the immigration court system, the immigration system must do a better job of prioritizing cases so that the real “bad guys” are aggressively targeted for removal while law-abiding immigrant families are given a reprieve or at least get a fighting chance at closing their cases.

For nearly a week news outlets worldwide have been buzzing with the gruesome reports from Mexico that 49 decapitated bodies were found on Sunday in what appears to be yet another sadistic show of strength by the country’s powerful and violent drug cartels. For many mixed-status families that include immigrants from Mexico, this violence is much more than a frightful story from a faraway place.

Reasonable observers will acknowledge that the growing violence in Mexico has many sources, and among them are drug policies in the United States that focus more on criminalizing all drug use than on treating drug addiction and taking a realistic view of recreational use of substances such as marijuana. In this analysis, U.S. drug policy quashes domestic production of drugs that are in high demand, creating a powerful financial incentive for producers and traffickers based in Central America to supply the U.S. market at a lucrative premium. The result is powerful, well-financed, and determined drug cartels that have proven so entrenched and brazen that even the Mexican military struggles to contain them.

The U.S. “War on Drugs” focuses on the consumers of those drugs, or on the demand-side of the equation; on the other hand, U.S. immigration policy is mostly targets immigrants, which constitute the supply-side. And so while the U.S. has waged a demand-side War on Drugs, it has been relatively lax in its enforcement of sanctions on employers who constitute demand for undocumented labor. If only the two strategies were reversed, we might have an immigration system that functions better and drug laws with fewer negative spillover effects.

In this context is the reality of gaining legal status in the United States. Those undocumented workers who were lured from Mexico to the United States by better wages and quality of life (and loose employer sanctions) now find themselves between a rock and a hard place — increasingly harsh anti-immigrant policies targeting them in daily life, and a home country increasingly marked by merciless conflicts between drug cartels and security forces.

As we have explained elsewhere, for many undocumented immigrants the only path to legal status involves returning to their country of origin and applying for an I-601 waiver of inadmissibility. This process can take months or even years before it yields a favorable result, and in the meantime families are either separated or must face together the frightful realities of life in a country increasingly overrun by cartels. The American Immigration Lawyers Association has compiled several anecdotes of violence affecting families separated by this lengthy adjudication process. In some cases applicants or even their U.S. citizen relatives have been kidnapped, injured, or killed while waiting for permission to return to the United States.

President Obama’s administration has proposed changes to the I-601 process that would make it possible for families to request pre-approval of the waiver needed for undocumented immigrants to be permitted to return to the United States, and we are making a push for this proposal to be realized and even expanded. You can read more about our support of provisional waivers and stateside adjudication elsewhere on our Northern Nevada immigration services blog.

Today’s mail was a good omen — it brought three letters from USCIS bearing three pieces of good news. First was an Adjustment of Status approval for a refugee from Eritrea by way of Ethiopia. These cases are among the most encouraging in that the immigration system is generous with and responsive to some of our nation’s most vulnerable residents. The young man is a student at Reno-area Sierra Nevada Job Corps.

The next approval was a pretty “vanilla” one — a run-of-the-mill renewal of a Permanent Resident card for a Mexico national. Gaining approval for this case is no great feat, but it was a big benefit for the client that we were able to oversee the smooth and rapid approval of her ten-year renewal.

Finally, we helped a Mexico national naturalize and gain U.S. citizenship after a drawn-out process with the local immigration office. The man had struggled with alcohol addiction for over 15 years before becoming active in the Catholic Church and finding new purpose in his life. He had been sober for over five years and he has not had any repeat of the alcohol-related arrests that plagued his past. Still, the immigration officer requested substantial evidence of his recovery even beyond affidavits from friends, family, and church elders regarding his improved moral character. After submitting to medical and psychological assessments that determined his alcoholism to be in remission, he was approved for naturalization.

Throughout the process, the client remained positive and hopeful — for him, no price is too great for the pride of calling himself a U.S. citizen.

A quick update on our petition asking USCIS to approve and expand the proposed rule to create a process for provisional pre-approval of immigration waivers: Brian S. from New York was the 50th signatory!

If you haven’t signed our petition yet, please do so by clicking on this link to our immigration waivers petition. If you have already taken action to support this effort, please tell your friends and family. Remember: comments are due June 1, 2012.

In the course of working on this issue, we have found that other advocates are taking action. Together, we can make a larger impact that hopefully pushes through this important change and expands its reach.

Jeresia Noris is the wife of an immigrant who was facing deportation until his case was administratively closed by an immigration judge. Through an exercise known as prosecutorial discretion, ICE will sometimes freeze its charges of deportation and agree to permit a judge administratively close the removal proceedings. Individuals eligible for prosecutorial discretion are usually persons of good character who have long-term ties to the United States in addition to family members who are U.S. citizens or lawful permanent residents. Full details on DHS’s prosecution priorities are outlined in the so-called Morton Memo of June 2011.

Jereisa and her husband were elated to hear that their immigration case would be administratively closed on March 22, but only a few days later they saw the proposed rule published on April 2. The proposed rule explicitly states that individuals who have pending removal proceedings will not be eligible for the provisional waiver process. This dashed the hopes that Jereisa and her husband had nurtured since the provisional waiver process was outlined in January, and Jereisa leapt into action.

Another activist born of this process is Martha Torres, a single mother who is herself in removal proceedings. Her case is complicated, but ultimately she is making an appeal for more just immigration laws. She and her daughter are facing separation from one another because under current laws there is very little space for the undocumented mother of a minor U.S. citizen to win the right to stay in this country.